Chapter 8
American Civil Liberties and the War on Terror

HISTORICAL CONTEXT
THE WAR ON TERROR: NEW CONFLICTS ARISE
PATRIOT ACT
CONTROVERSY SURROUNDING ELECTRONIC SURVEILLANCE
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WIRETAPPING WITHOUT FISC APPROVAL
COLLECTING PHONE CALL DATA
FOCUS ON NSLS
THE FISA AMENDMENTS ACT OF 2008
PUBLIC OPINION

Civil liberties (or civil rights) are individual rights designated by law. They are legal shields that protect citizens from abuses by their own government. Historically, times of war in the United States have produced situations in which the U.S. government has given national security concerns a higher priority than protection of the public’s civil liberties. Most often, these transgressions have been instigated by the executive branch—the president and the departments and offices under his direct control. However, the framers of the U.S. Constitution included a system of checks and balances that allow individuals to challenge such transgressions in the courts. In addition, the Constitution’s guarantee of freedom of speech allows the American press to publicize conflicts between the interests of national security and the protection of civil liberties. A debate over how best to balance these two important priorities has raged since the nation began and takes on new importance as the United States wages war once again.

HISTORICAL CONTEXT

In the United States the U.S. Constitution is considered the ultimate definer of Americans’ civil rights. The original document, completed in 1789, included seven articles that outlined the structure and workings of the federal government. Over the next two years ten amendments known as the Bill of Rights were added to the Constitution. They were specifically designed to limit the power of the new government and ensure that certain individual rights are protected by law. An additional seventeen amendments have been enacted since that time.

Times of war in the United States have often produced contentious debates over the proper balance between protecting national security and protecting civil liberties. History shows that some civil rights have not been honored by the U.S. government when the nation was threatened, a condition known by the Latin term Inter arma enim silent leges, popularly translated as “In times of war, the laws fall silent.” These civil liberty conflicts most often involve individual rights protected by the First, Fourth, and Fifth Amendments of the Constitution, which read as follows:

• First Amendment—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
• Fourth Amendment—“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
• Fifth Amendment—“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The rights to free speech and peaceable assembly guaranteed by the First Amendment receive exceptional attention when they are exercised during wartime by people opposed to the government’s actions. The protections afforded under the Fourth and Fifth Amendments

relate to judicial procedures, legal due process, and privacy issues. A right to privacy is not specifically spelled out in the Constitution but is believed to result inherently if the government operates in accordance with the articles of the Constitution and respects the Bill of Rights.

Civil War: Suspension of Habeus Corpus

During the Civil War (1861–1865) President Abraham Lincoln (1809–1865) suspended the writ of habeus corpus (a legal procedure in which a court can order that a prisoner held by the government be presented to the court for determination if the imprisonment is legal or not). Article One of the Constitution allows such a suspension “when in cases of rebellion or invasion the public safety may require it.” Lincoln’s action allowed Union troops to detain Southern sympathizers and anyone else deemed to be a threat to public safety and hold them indefinitely. In addition, military commissions tried and convicted civilian detainees accused of crimes. Thus, martial law went into effect, meaning that the military took over powers normally held by the civilian law enforcement system.

The consequences of the suspension were highly controversial and led to a legal battle in the U.S. Supreme Court after the war ended. In the 1866 case Ex parte Milligan (71 U.S. 2), the Court ruled that martial law cannot be imposed so long as civilian courts and governments are still in operation. In addition, any imposition of martial law must be confined to a limited area in which war is actually occurring. The Posse Comitatus Act of 1878 made it unlawful for the U.S. military to execute legal authority over civilians unless specifically authorized by the Constitution or an act of Congress. It should be noted that this prohibition does not apply to National Guard troops under state government command.

World War I: Free Speech?

The World War I era is associated with many serious conflicts between national security and civil liberties. Around the turn of the twentieth century a number of movements associated with labor rights, anarchy, and socialism became active in the United States. Some elements of these groups incited violence and were considered subversive (advocating the overthrow of the government). As such, the nation was in a wary mood when World War I erupted in Europe in 1914.

The United States’ entry into the war in 1917 was accompanied by the passage of several federal laws aimed at squelching what the government considered anti-American activities. The Espionage Act of 1917 and the related Sedition Act of 1918 included a variety of provisions designed to prevent the passage of national security information to the enemy. The acts also made it illegal for anyone to obstruct military recruiting or enlistment. Most troubling to civil libertarians were provisions in the Sedition Act that made it illegal to say or write anything “disloyal” about the U.S. government, Constitution, flag, or military forces. The act also prohibited any expression of resistance to the United States or support for its enemies. In other words, acts of dissent (disagreement with the government) were forbidden during the course of the war.

The acts were used by the government against many socialists, anarchists, and other activists who had begun a vocal antiwar campaign. In 1919 the Supreme Court heard a case involving a socialist who had mailed circulars to recent military draftees urging them to defy the government and oppose the draft system. In Schenck v. United States (249 U.S. 47), the Court ruled in favor of the government and noted, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Most of the provisions of the wartime acts were repealed during the 1920s.

World War II: Internment of Japanese-Americans

One of the most often referenced violations of American civil rights in wartime took place during World War II (1939–1945), when the U.S. government detained American citizens of Japanese descent. In 1942 President Franklin D. Roosevelt (1882–1945) signed Executive Order 9066 authorizing the removal and internment of all people of Japanese descent living in California and the western portions of Oregon and Washington. The military and civilian government decisions leading up to issuance of the executive order are described by Stetson Conn in “The Decision to Evacuate the Japanese from the Pacific Coast” (August 27, 1996, http://wwwarmymil/cmh-pg/books/70-7_05htm).

Conn notes that the military originally planned to forcibly evacuate only aliens (non-American citizens) who were Japanese, German, or Italian and lived near strategic areas along the Pacific coast. Ultimately, the plan evolved into forced internment of both aliens and American citizens of Japanese descent. This change was precipitated by a variety of factors, primarily widespread and persistent paranoia among the U.S. population that Japanese-American citizens had not been and would not be loyal to the United States. This feeling was aggravated by widely circulated, but false, rumors that traitors within the Japanese-American community had helped facilitate the surprise attack on Pearl Harbor in December 1941 and were engaging in acts of espionage to support a Japanese invasion of the U.S. mainland.

According to Our Documents, which is part of the National Archives and Records Administration, in “Executive Order 9066: Resulting in the Relocation of Japanese

(1942)” http://www.ourdocuments.gov/doc.php? Flash=true&doc=74), approximately 122,000 people of Japanese descent, including children and elderly people, were detained under Executive Order 9066. The detain-ees were forced to leave their homes quickly and allowed to take only a minimum of possessions with them. They spent the duration of the war in internment camps throughout the Midwest and West (excluding the coastal states). These camps were surrounded by barbed wire and patrolled by armed guards. Following the war, the internees were released; however, many found it difficult to return to their previous homes and jobs.

In 1988 the Civil Liberties Act acknowledged that a “grave injustice” had been perpetrated on Japanese-Americans during World War II by the U.S. government and offered a payment of $20,000 to each internee as restitution.

Cold War: McCarthyism

McCarthyism describes a phenomenon that occurred in the United States when intense paranoia about communism created a social and political environment in which civil liberties were trampled in the interest of national security. The term is named after Senator Joseph R. McCarthy (1908–1957; R-WI), who served in the U.S. Senate from 1947 until his death in 1957. Even though the Soviet Union had been a U.S. ally during World War II, deep differences fostered a period of mutual distrust and animosity between the two nations after the war ended in 1945. In the United States many people believed the Soviets wanted to overthrow (subvert) the U.S. government and were being aided by American members of the Communist Party and sympathizers called fellow travelers.

Committees were formed within the U.S. House of Representatives and the Senate to investigate alleged communist activities by Americans. Two of the most prominent committees were the House Un-American Activities Committee (HUAC) and a Senate committee led by Senator McCarthy. The HUAC began meeting in 1938 and is most famous for its probe in the late 1940s through the mid-1950s into the political leanings of people in the entertainment industry, particularly in Hollywood. The committee held hearings and demanded that witnesses testify about their affiliations and the ties of their colleagues to the Communist Party. People who refused to cooperate were sent to prison or, at the very least, lost their job and reputation. Their names were put on a so-called blacklist, which meant that other companies in the industry were afraid to hire them.

McCarthy rose to prominence in U.S. politics after announcing in a 1950 speech that he had the names of dozens of communist sympathizers working within the U.S. Department of State (DOS). He began holding hearings similar to those of the HUAC and accusing fellow politicians of having communist sympathies. In “Censure of Senator Joseph McCarthy (1954)” (2008,http://usinfo.state.gov/infousa/government/overview/60.html), the DOS notes that McCarthy and his aides “made wild accusations, browbeat witnesses, destroyed reputations and threw mud at men.”

The Fifth Amendment to the Constitution states that a person “shall [not] be compelled in any criminal case to be a witness against himself.” Some witnesses seized on this provision, declaring their Fifth Amendment right as a reason for not answering committee questions. However, this legal maneuver often cost them their job. Investigations grew to include teachers and university professors around the country. Several states began requiring that all public employees take oaths swearing that they had not been and would not become members of any organization advocating the overthrow of the government and did not advocate such an organization. Employees who refused to take the oath were fired or otherwise punished.

In January 1954 McCarthy’s hearings were televised for the first time. The DOS notes that “day after day the public watched McCarthy in action—bullying, harassing, never producing any hard evidence, and his support among people who thought he was ‘right’ on communism began to evaporate.” The political tide turned against McCarthy, and in December 1954 the Senate passed a censure (official condemnation) of him for abusing his powers. The U.S. Supreme Court and state courts began ruling against the tactics that had been used on committee witnesses and government employees. In the 1956 case Slochower v. Board of Higher Education of New York City (350 U.S. 551), the Court found that New York City had acted illegally in firing a professor for using his Fifth Amendment right against self-incrimination to avoid committee questions. Many other rulings found that civil liberties had been violated during the anticommunist fervor.

Vietnam War: Domestic Surveillance

The 1960s and early 1970s were a time of domestic strife in the United States. Many groups and movements became active in protesting against the government for a host of reasons, including opposing the Vietnam War (1955–1975) and advocating the enforcement of civil rights for minorities and women. Political and social activism became a common means of expressing discontent in public. Even though some groups were openly subversive, many sought change through legal methods or civil disobedience (breaking civil laws in a nonviolent fashion, such as by trespassing or blocking traffic and refusing police orders to cease).

As described in Chapter 2, the nation’s intelligence agencies conducted massive campaigns of domestic surveillance in the name of national security during this period. Many abuses of power and violations of civil

liberties were later uncovered and publicly disclosed through federal investigations, such as those of the Subcommittee on Constitutional Rights (chaired by Senator Sam J. Ervin [1896–1985; D-NC]) and the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (chaired by Senator Frank Forrester Church III [1924–1984; D-ID]). Public distaste with domestic surveillance drove massive reforms within the intelligence community, including the Central Intelligence Agency, the Defense Intelligence Agency, and the Federal Bureau of Investigation (FBI).

THE WAR ON TERROR: NEW CONFLICTS ARISE

The United States enjoyed more than two decades of relative peace following the end of the Vietnam War in 1975. The disintegration of the Soviet Union during the early 1990s effectively ended the cold war. As a result, issues related to conflicts between civil liberties and national security became less prominent. This condition changed dramatically following the terrorist attacks of September 11, 2001 (9/11). The United States began a new war—the War on Terror—that has brought back many of the historic concerns about the protection of civil liberties during wartime. Once again, national security issues are weighed against constitutional rights and societal fears.

Because terrorism is associated by many Americans with people of the Middle East, U.S. citizens of Middle Eastern descent are subject to suspicions about their loyalty to the United States. In Terrorism in the United States (2008, http://www.gallup.com/poll/4909/Terrorism-United-States.aspx), the Gallup Organization reports on a number of polls that it conducted between 1995 and 2008. In July 2005 respondents were asked if they favored “requiring Arabs, including those who are U.S. citizens, to carry a special ID” as a means of preventing terrorist attacks in the United States. A slim majority (53%) of respondents expressed opposition to this idea. However, 46% of those asked favored implementing such a measure. A similar breakdown was obtained when pollsters asked if “special, more intensive” security procedures should be required for Arabs boarding airplanes in the United States. Slightly more than half (53%) of respondents favored this measure even though the question specified that the Arabs could be U.S. citizens.

In the same poll Gallup asked a number of other questions related to basic civil liberty issues. In general, respondents supported ID requirements (70% favorable) and the use of metal detectors (81% favorable) at the entrances to office buildings and other public places. Strong support also registered for implementing airport-like security measures in the United States’ mass transit systems (78% favorable) and for requiring all Americans to carry a national identification card (66% favorable).

There was nearly universal disfavor (93% opposed) to a measure in which police officers could enter a home without a search warrant. Stiff opposition (75%) was also expressed for the idea of allowing the government to imprison and hold for years without trial a U.S. citizen suspected of terrorist activities. There was similar disfavor for allowing police officers to single out people at random on the street and search their belongings (70% opposed). Likewise, a large fraction (73%) were opposed to allowing law enforcement easier secret access to people’s private communications. There was slightly less resolve against allowing government agents access to library records to determine what books patrons have checked out. Only 60% of respondents were opposed to this measure, whereas 37% favored it. Opinions were mixed on the issue of whether the police should be allowed to single out people at random on the street and ask for identification. This measure received nearly equal amounts of support (48%) and opposition (51%).

PATRIOT ACT

As described in Chapter 2, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001—known simply as the Patriot Act—was passed by Congress in response to the 9/11 terrorist attacks. Many of the provisions of the act deal with surveillance procedures and financial security enhancements that have implications on civil liberty issues.

Controversy Erupts

In “The USA PATRIOT Act: Preserving Life and Liberty” (2008,http://www.lifeandliberty.gov/highlights.htm), the U.S. Department of Justice (DOJ) claims that the Patriot Act of 2001 made only “modest, incremental changes” to existing law related to criminal activities. The DOJ notes that the act makes tools available to law enforcement for use in terrorism investigations that have been used for decades against other kinds of criminals, particularly suspected organized crime figures and drug traffickers. These tools include surveillance techniques (such as wiretapping) and legal maneuvers (such as streamlining the search warrant process). In addition, the Patriot Act allows federal agents to obtain business records relevant to national security investigations without going through the grand jury process to obtain a subpoena. Instead, the request is made through the Foreign Intelligence Surveillance Court (a federal court), which can grant permission if the government meets certain criteria. Other components of the act facilitate information sharing and cooperation between different government agencies, increase the penalties for terrorist-related crimes, and designate new criminal offenses, such as harboring people who have committed or plan to commit terrorist acts.

The Patriot Act was not considered that controversial when it was initially passed in October 2001. The act received overwhelming support in the House (passing 357 to 66) and in the Senate, where only one senator out of one hundred voted against it. (See Figure 8.1 and Figure 8.2.) The lone “nay” vote was cast by Senator Russell D. Feingold (1953–; D-WI). Feingold notes in “Civil Liberties” (2008, http://www.russfeingold.org/civil_liberties.php) that he supported nearly all the provisions of the act, but was deeply troubled by the civil liberty implications of a handful of provisions. The senator, who was reelected in 2004, fears that these provisions “may infringe on the rights of law-abiding citizens, while doing little [to] protect our country against terrorists.”

The Patriot Act has been harshly criticized by others, including the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC).

Headquartered in New York City, the ACLU is a private nonprofit organization that is devoted to defending American civil liberties. In “National Security: Safe and Free at Home” (2008,http://epicorg/privacy/terrorism/usapatriot/). EPIC claims that the 2001 act was passed so quickly in the aftermath of 9/11 that few traditional safeguards afforded by the Constitution were included to protect American civil liberties. Both organizations work to publicize what they consider to be civil liberty abuses committed by federal government agencies under the Patriot Act.

The 2001 Patriot Act included a provision that sixteen sections of the act would sunset (automatically expire) after four years unless Congress chose to renew them. In late 2005 intense debate began in Congress over whether those provisions should be renewed. In December 2005 the House voted 251 to 174 to renew the provisions with some modifications. (See Figure 8.3.) In March 2006 the USA PATRIOT Act Improvement and Reauthorization Act of 2005 also passed the Senate by a vote of 89 to 10. (See Figure 8.4.) The refurbished act made permanent fourteen of the original sixteen sunset provisions and placed new four-year sunset periods on the other two provisions (which concern surveillance techniques and the acquisition of business records). According to the DOJ, in the fact sheet “USA Patriot

Act Improvement and Reauthorization Act of 2005” (March 2, 2006,http://www.usdoj.gov/opa/pr/2006/March/06_opa_113.html), Congress added “dozens of additional safeguards to protect Americans’ privacy and civil liberties” as part of the reauthorization.

Some cities and municipalities and even states around the country have passed nonbinding resolutions expressing their opposition to certain provisions of the Patriot Act. The organization Bill of Rights Defense Committeehttp://wwwbordcorg/detailphp?id=735). In particular, the resolution mentions concerns regarding the government collecting information on the political and religious activities of individuals when that information has no direct relation to a criminal investigation.

CONTROVERSY SURROUNDING ELECTRONIC SURVEILLANCE

The advent of the telephone and recording devices in the late 1800s introduced a new question to the debate over civil liberties: Does the use of equipment to intercept and record a private conversation constitute a “seizure” under the Fourth Amendment? In 1928 the Supreme Court ruled in Olmstead v. United States (277 U.S. 438) that the Fourth Amendment does not require a warrant for a wiretap placed on phone lines outside a suspect’s residence. The case was decided on a narrow 5–4 vote, and the decision was highly controversial. Over the following decades Congress and the federal courts gradually chipped away at the legal precedent set in the 1928 case. In 1967 the decision was reversed by the Supreme Court in Berger v. New York (388 U.S. 41) and Katz v. United States (389 U.S. 347). Thus, judicial warrants became necessary to conduct electronic surveillance in criminal investigations. However, the gathering of intelligence related to national security has been treated differently by legal authorities.

In 1968 Congress passed the Omnibus Crime Control and Safe Streets Act, which authorized the use of electronic surveillance for certain classes of crimes so long as a judicial warrant is obtained. Section 2511 (3) of the act notes that the act does not limit “the constitutional power of the President to take such measures as he deems necessary” to obtain foreign intelligence information considered essential to national security, to protect national security information from falling into foreign hands, and to protect against hostile acts of a foreign power, overthrow of the government by force or other unlawful means, or any other “clear and present danger to the structure or existence of the Government.” This section stipulates that information obtained via electronic surveillance conducted under the authority of the president pursuant to these powers can be used as evidence in a trial so long as the conduct is “reasonable.” In general, this section was interpreted as meaning that the U.S. attorney general (operating under the authority of the president) could conduct warrantless electronic surveillance for national security purposes.

This interpretation was challenged in the 1972 Supreme Court case of United States v. United States District Court (407 U.S. 297). In this case the government had used taped phone conversations to indict three American defendants in the bombing of a Central Intelligence Agency office in Ann Arbor, Michigan. The electronic surveillance had been conducted without a warrant but at the direction of the U.S. attorney general. The U.S. District Court for the Eastern District of Michigan ruled that the warrantless surveillance violated the Fourth Amendment. The Supreme Court agreed, noting that “the freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate.”

FOREIGN INTELLIGENCE SURVEILLANCE COURT

In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA), creating the Foreign Intelligence Surveillance Court (FISC). FISA stipulates that the government must obtain a special warrant from the

FISC before conducting specific intelligence-gathering activities related to national security within the United States. The original act related primarily to electronic surveillance. Subsequent amendments have allowed covert “physical searches,” access to “certain business records,” and the use of National Security Letters (NSLs). NSLs are letters used by intelligence agencies to request information (e.g., to request a suspect’s credit card records from a financial institution). The recipient of an NSL does not have to comply with the request but must keep the request secret.

The creation of the FISC was driven by United States v. United States District Court and by a host of allegations that emerged during the early 1970s regarding spying by government intelligence agencies on U.S. citizens. These allegations were investigated by various government bodies, most notably the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. This committee found evidence that the executive branch of the federal government had abused its power by conducting domestic electronic surveillance that it claimed was in the interest of national security.

The FISC originally consisted of seven federal district court judges designated by the chief justice (the head of the judicial branch of the federal government who presides over the U.S. Supreme Court). The Patriot Act of 2001 changed this to eleven judges on the FISC. At least one of the judges must be a member of the U.S. District Court for the District of Columbia. The FISC is not in session regularly but convenes in Washington, D.C., when needed. Because the judges live at various locations around the country, they attend hearings on a rotating basis.

The workings of the FISC are described by the Federal Judicial Center (September 16, 2008, http://www.fjc.gov/history/home.nsf/page/fisc_bdy), an education and research agency for the federal courts. The process is as follows:

• A federal intelligence agency requests a warrant application
• The warrant application is drafted by attorneys at the National Security Agency (NSA)
• The application has to include certification from the U.S. attorney general that the target of the surveil-lance or search is a U.S. citizen or resident alien who “may be involved in the commission of a crime” or a foreign power or the agent of a foreign power
• The application is presented before the judges of the FISC
• If an application is denied, the government can appeal the decision to the Foreign Intelligence Surveillance Court of Review, which is presided over by three district or appeals court judges designated by the chief justice

According to the Federal Judicial Center, the Court of Review was first convened in 2002.

The FISC is often called a “secret” court, because much of its work is conducted in secrecy. The sensitive nature of national security matters means that the decisions of the court are based on classified information. FISA does require the U.S. attorney general to submit an annual report to Congress noting the number of applications filed with the FISC and the number of orders issued by the court. The Federation of American Scientists http://www.fas.org/irp/agency/doj/fisa/), a nonprofit organization, maintains copies of the annual reports. The first report covers 1979 and states that the FISC issued 207 orders that year granting the government authority to use electronic surveillance as part of national security investigations.

The latest available annual report indicates that the FISC reviewed 2,371 applications in 2007 for authority to conduct electronic surveillance and physical searches. All but one of the applications were approved. In addition, six applications were reviewed and approved by the FISC for access to certain business records for “foreign intelligence purposes.” The report notes that the DOJ’s Office of the Inspector General (OIG) had earlier in the year found inaccuracies in the NSL database. While the FBI reported that 12,583 NSL requests concerning 4,790 different Americans were made in 2006, this number is considered an estimate.

WIRETAPPING WITHOUT FISC APPROVAL

In “Bush Lets U.S. Spy on Callers without Courts” (New York Times, December 16, 2005), James Risen and Eric Lichtblau accuse the administration of George W. Bush (1946–) of conducting wiretap operations without FISC approval. Risen and Lichtblau allege that in early 2002 President Bush issued a secret executive order authorizing the NSA to bypass the FISC process for conducting domestic surveillance. Headquartered at Fort Meade, Maryland, the NSA oversees signals intelligence operations for the U.S. intelligence community. (Signals intelligence is the interception of signals, such as radio, for the purpose of intelligence gathering.)

Risen and Lichtblau estimate that the international phone calls and e-mails of “hundreds, perhaps thousands” of Americans had been monitored to search for links to international terrorism. They claim unnamed government officials told the New York Times in 2004 about the program because of concerns about its constitutionality. The newspaper said it delayed publishing the story for a year at the request of the White House because of concerns that the article would alert suspects they were under surveillance. Risen and Lichtblau report that the surveillance program had been credited by the government with uncovering

several terrorist plots against targets in the United States and the United Kingdom.

President Bush allegedly based the program on his belief that a September 2001 congressional resolution granted him “broad powers” in the War on Terror to protect U.S. interests. Risen and Lichtblau claim that several members of Congress had been briefed about the monitoring program and at least one, Senator John D. Rockefeller IV (1937–; D-WV), had expressed concerns about it to the White House. Risen and Lichtblau note that it is puzzling why top officials decided to bypass the FISC process, considering that the FISC is believed to have granted nearly every request it has ever considered. Sources for the article note that it takes the FISC several hours to issue emergency approval for wiretaps and that the Bush administration considered this delay to be unacceptable. In addition, each FISC authorization requires information about specific surveillance targets, whereas the intelligence community is interested in monitoring many communications from a variety of sources at once.

According to Risen and Lichtblau, the program was suspended temporarily in mid-2004 because of concerns about its legality. Reportedly, the suspension was spurred by a complaint from the federal judge overseeing the FISC. The program was “revamped” and continued to operate.

Repercussions

Publicity about the warrantless surveillance program led to several repercussions for the Bush administration. One of the FISC judges resigned, reportedly to show his displeasure with the White House over the controversy. In January 2006 the ACLU filed a lawsuit against the NSA, claiming that the surveillance program violated the First and Fourth Amendments of the Constitution and that President Bush had exceeded his authority under the separation of powers principles of the Constitution. The lawsuit sought a court order to dismantle the program. In August 2006 Anna Diggs Taylor (1932–), a federal judge, granted that court order on the grounds that the surveillance program violated FISA and the Fourth Amendment. She also ruled that President Bush had exceeded his authority under the Constitution. The DOJ immediately filed an appeal, and top government officials defended the program, insisting that it is legal and necessary to combat terrorist attacks.

Lydia Saad of the Gallup Organization reports in Public Opinion Mixed on Bush Anti-terrorism Agenda (September 21, 2006,) http://www.gallup.com/poll/24625/Public-Opinion-Mixed-Bush-AntiTerrorism-Agenda.aspx) that in September 2006 Americans were split on whether the warrantless wiretapping was a right or wrong action by the Bush administration. Over half (55%) of the respondents felt it was right, whereas 42% thought it was wrong.

COLLECTING PHONE CALL DATA

In “NSA Has Massive Database of Americans’ Phone Calls” (USA Today, May 11, 2006), Leslie Cauley reports that the NSA had been secretly collecting phone call data on tens of millions of Americans. Cauley alleges that the agency had been compiling a database of phone records to search for links to international terrorism. The database included information such as the calling and receiving phone numbers and the duration of calls. The program was reportedly begun shortly after 9/11. Cauley claims that the telecommunications companies AT&T, Verizon, and Bell South turned over phone call data to the NSA but that other companies—including Qwest—refused to do so because of legal concerns. The NSA did not obtain warrants for the information but simply asked (and may have paid) the companies to cooperate. According to Cauley, Qwest’s lawyers asked the agency to process the request through the FISC, but the agency refused to do so.

Cauley’s article led to media criticism of the phone companies for complying with the NSA request. However, the general public was largely ambivalent about the controversy. The Gallup Organization notes in Civil Liberties (2008, http://www.gallup.com/poll/5263/Civil-Liberties.aspx) that a poll on civil liberties was conducted only days after the story broke in USA Today. A slim majority of respondents (51%) expressed disapproval of the phone record collection program, whereas 43% approved.

Bell South and Verizon subsequently denied that they turned over records to the NSA. AT&T executives refused to confirm or deny the allegations but insisted that they had not endangered customer privacy. Leslie Cauley et al. retract in “Lawmakers: NSA Database Incomplete” (USA Today, June 30, 2006) part of Cauley’s original story, noting that her sources could not confirm that Bell South and Verizon had cooperated with the NSA. Cauley et al. report that dozens of class-action lawsuits had been filed against the telecommunications companies linked to the story.

FOCUS ON NSLS

In March 2008 the OIG issued A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 http://www.usdoj.gov/oig/special/s0803b/final.pdf), which focuses on the FBI’s use of NSLs during 2006. The report is unclassified, but redacted, meaning that parts of it are blacked out or omitted to protect national security interests. The FBI made 49,425 NSL requests in 2006. (See Figure 8.5.) This number was up slightly from 2005. Between 2003 and 2006 the FBI made a total of 192,499. In 2006 a majority (57%, or 11,517) of the NSL requests were for U.S. citizens. (See Figure 8.6.) This percentage was up from 39% in 2003.

The OIG notes that the FBI considers NSLs to be an “indispensable investigative tool in major terrorism and

espionage investigations.” The NSLs requested in 2006 were used in counterterrorism and counterintelligence investigations to confirm the identities of suspects and explore their financial affairs.

THE FISA AMENDMENTS ACT OF 2008

Throughout 2007 and early 2008 lawmakers considered ways to amend FISA. This process is described in detail by Elizabeth B. Bazan of the Congressional Research Service, in The Foreign Intelligence Surveillance Act: A Sketch of Selected Issues (July 7, 2008, http://wwwfasorg/sgp/crs/intel/RL34566pdf). Bazan notes that in early August 2007 the director of national intelligence released a statement asking congressional leaders to amend FISA to include two critical changes: release the government from the requirement for a court order to gather foreign intelligence on foreign people located overseas and provide liability protection for companies that had furnished assistance to the government in foreign intelligence collection activities in the past.

In August 2007 the Protect America Act (PAA) was enacted into law. This short-term law was in effect only through February 2008. Its purpose was to allow the federal government to continue certain types of electronic surveillance while long-term changes to FISA were debated. The PAA specifically allowed surveillance that targeted foreign people located overseas. In other words, warrantless surveillance of people “reasonably believed to be located outside the United States” was allowed. Civil libertarians complained that American phone calls and e-mails could be unintentionally intercepted as part of the surveillance effort.

In July 2008 President Bush signed the FISA Amendments Act of 2008, which incorporated the provisions of the PAA. Critics complain that the law allows government surveillance without judicial oversight and gives immunity to the telecommunications companies that aided the government in its warrantless wiretapping program. The FISA Amendments Act of 2008 will sunset in 2012.

PUBLIC OPINION

The Gallup Organization notes in Civil Liberties that at various times from 2002 to 2005 it conducted polls to gauge American attitudes about balancing civil liberties against national security. In January 2002 the respondents were split evenly, with 47% expressing the view that the government should “take steps, even if civil liberties [are] violated,” to prevent terrorist attacks in the United States. Only slightly more (49%) respondents said that government steps against terrorism should not violate civil liberties. This poll was conducted only four months after 9/11. Over time, public opinion has drifted toward greater protection of civil liberties. By August 2003 just over two-thirds (67%) of those asked were opposed to civil liberty violations as an acceptable measure in the fight against terrorism. Polls conducted in November 2003 and December 2005 showed little movement from this stance with 64% and 65%, respectively, in opposition.

Similar results were obtained in a Gallup poll conducted in May 2006 only days after allegations were published in USA Today regarding the government obtaining phone

records of large numbers of Americans. Poll participants were asked to rate the actions of the Bush administration at fighting terrorism in terms of their effects on civil liberties. Forty-one percent of respondents felt the administration had gone “too far” in restricting people’s civil liberties during the War on Terror. By comparison, only 11% agreed with this rating when the same question was askedinJune2002. At that time a majority of respondents (60%) felt the Bush administration’s antiterror actions were “about right” in regards to restricting civil liberties. By May 2006 only 34% agreed with this assessment. Overall, the results indicated a growing discontent among Americans between 2002 and2006with theintrusion of theWar on Terroroncivil liberties in the United States.

(January 6, 2008, http://www.angus-reid.com/polls/view/us_upset_with_bush_on_terrorism_civil_liberties/) that in December 2007 the polling company Harris Interactive asked Americans to rate the Bush administration on its performance at protecting civil liberties. A majority (57%) of respondents gave the administration a negative rating, whereas 33% gave it a positive rating.